Thursday, October 27, 2011

On October 27, Americans for Safe Access filed suit against Attorney General Eric Holder and U.S. Attorney Melinda Haag of the Northern District of California as the representatives of the U.S. Department of Justice accusing it of acting in violation of the 10th Amendment of the U.S. Constitution for threatening California cities that were implementing the California's medical marijuana laws.

The Tenth Amendment provides, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved the the States respectively, or to the people." Various powers prohibited to the States are set forth in Article I, section 10.

The Tenth Amendment has rarely been the ground for litigation and the Supreme Court has said little about its meaning and scope.

This could be another ground breaking case of constitutional interpretation arising from the conflict between the People of California and the U.S government around the use of marijuana for medical purposes. In the last big case, Raich, the government won, 6 to 3, a restatement of a very broad reach for national government power under the commerce clause.

According to Huffington Post, the spokesperson for the U.S. Attorney for the Eastern District of California, says that the crackdown on California medical marijuana dispensaries was the idea of the four U.S. Attorneys that head the four federal prosecutors offices in California. That is not strange or surprising. But Huffington Post is spinning her comments to say that President Obama (the Obama Administration) was not involved in the decision (Huffington Post headline:"Obama Not Implicated In California Medical Marijuana Crackdown, U.S. Attorney Claims"). They note that the campaign was approved by the Deputy Attorney General, but suggest that since he did not fly to California for the press conference to announce the crackdown, this indicates some "administration" distancing from the decision.

It is clear that the Obama Administration is getting heat for this. It is unlikely that the President was personally asked to approve this initiative. It is likely that his press people knew about the big press conference in Sacramento at which the four U.S. Attorneys were speaking. In a well-run administration, they certainly would have been advised that this was taking place. There is no question that the President should be held responsible for this policy unless there was an effort by Justice Department officials to keep him (meaning his advisers in the White House) out of the decision making loop.

Attorney General Eric Holder should have known about this. He should have known about the memorandum that his Deputy issued earlier this summer that attracted widespread criticism. It is almost inconceivable that he did not know about the memorandum. As the memorandum was being drafted, Holder should have asked what the specific implications of this memorandum would be for enforcement actions, and he probably was advised on that point as well.

Unfortunately for the proper running of the Justice Department, Eric Holder is under significant political attack for Republicans in Congress over the mishandling of the "Fast and Furious" gun trafficking investigation in Arizona, and is being investigated by a Congressional committee. He is necessarily distracted, and he is weakened. Challenging U.S. Attorneys who choose to make enforcement initiatives is not something he will eagerly do.

It is worth noting that Holder demonstrated very poor judgement in failing to protect President Clinton and the interests of justice in January 2000. Then, as Deputy Attorney General (the number two, chief operating officer at Justice), on the last day of the Clinton Administration, as Clinton was issuing pardons and reprieves, Clinton was about to grant one to Marc Rich, a fugitive from justice. Holder was asked and stupidly signed off on that pardon, exposing Clinton to well-deserved condemnation, and betraying justice, both upper and lower case. Holder, if he had been thinking would have said no, "Look, this guy is a fugitive from justice. He fled to avoid a trial. He had good attorneys, he was contesting the charges, he was out on jail, and he ran. Mr. President, how can you give him a pardon?"

Not only the Attorney General, but the Deputy Attorney James Cole, and all four of the U.S. Attorneys in California were nominated by President Obama. They are his appointees, not the appointees of someone else. These nominations are reviewed by his White House personnel office.

Obama might not have personally decided the policy to crack down on dispensaries in California, but those who did so, and are doing so, are carrying out his Administration's policies. His Administration's policies are his policies. He was elected, not they, and he is responsible for how they carry out his mandate. He has the authority to tell them not to do this, to say that this is not what he wants, and they comply or resign.

Thursday, October 20, 2011

In debate on amendment No. 750 in the U.S. Senate today, Oct. 20, 2011, U.S. Senator Kay Bailey Hutchison (R-TX) said “This is the most massive encroachment on states' rights I have ever seen in this body.”

Holy Cow! Outrageous! What was this?

Sen. Jim Webb (D-VA) sponsored a bill to create a 14-member commission to study America's criminal justice system -- a study. He offered the bill as an amendment to the Appropriations bill for the U.S. Department of Justice. The price tag for the commission was $5 million, not terribly high.

The "most massive encroachment on states' rights I have ever seen"? One has to wonder whether Senator Hutchison just had cataract surgery or if she has been in a coma since she came to the Senate in June 1993. She's a lawyer and received a law degree from the University of Texas Law School in 1967.

Senator Tom Coburn, M.D. (R-OK), an obstetrician, called it unconstitutional. “We are absolutely ignoring the Constitution if we do this." “We have no role … to involve ourselves in the criminal court system or the penal system in my state or any other state.”

Yet those leading conservative members of the Senate Judiciary Committee, Senators Lindsay Graham (R-SC), Orrin Hatch (R-UT), also voted FOR the amendment, as well as Olympia Snow (R-ME) and Scott Brown (R-MA). All the other Republicans voted against it, a total of 43 no votes.

The amendment, in the current climate required 60 votes to pass, it only got 57 yes votes. All the Democratic Senators voted for it, plus the two independents.

Friday, October 14, 2011

The Fifth Amendment to the U.S. Constitution provides that "No person shall . . . be deprived of life, liberty, or property, without due process of law. . ." Does this federal raid of a medical marijuana dispensary operating in compliance with the strict controls of the Colorado Medical Marijuana Enforcement Division in which property is taken and persons are seized sound like what you or an ordinary person would think is the "due process of law?"

Tuesday, October 04, 2011

Montana Attorney General Steve Bullock, noting that hunting season is starting soon, sent a strong letter to U.S. Attorney General Eric Holder subtly suggesting how offensive and unworkable was the letter to Federal Firearms Licensees from the ATF declaring state medical marijuana laws null and void as far as the Federal gun laws go.

Monday, October 03, 2011

A provision of the 1968 Gun Control Act prohibits drug addicts from possessing or receiving a firearm (18 U.S.C. 922 (g)(3)). Given the connection between serious drug addiction and criminal behavior such a provision is not unreasonable. Typically however, Congress went a little farther, applying the prohibition to any person "who is an unlawful user. . . of a controlled substance."

Of course, if you have a bona fide prescription for a controlled substance for a medical condition you are not "an unlawful user," and thus it is not a crime to possess or receive a firearm. So even if you use powerful narcotics legally, that does not affect your right to possess a firearm.

As of this time, sixteen states (and the District of Columbia) have enacted laws recognizing the medical use of marijuana.(The laws in D.C. and New Jersey are not yet operative.)

As a result of these state laws, there are hundreds of thousands of persons nationwide whose doctors have recommended to them that they use marijuana for medical purposes.

But Federal law still does not, and Federal health officials still do not, recognize the medical use of marijuana
(except by four persons who receive marijuana from the federal government
under the compassionate use program).

Should being a lawful patient using marijuana under State law require that one give up one's Constitutional right under the Second Amendment to possess a firearm for self-defense? As matter of logic, of course not. Under state law, you are a lawful user of marijuana under a doctor's supervision. You are not a drug addict. But according to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) of the U.S. Department of Justice, the answer, sadly, is yes!

Once again obtuse Federal health and drug officials, now acting through ATF bureaucrats, are jeopardizing the liberties of Americans by setting aside their right to self defense, clarified by the U.S. Supreme Court in the Heller case in June 2008.